Our law firm team frequently encounter with the question set by the employers concerned with the manner of determining and the possible ways of proving the misuse of temporary incapacity for work by the employees.
Persuant to the Art. 179, para. 3, item 3 of the Labour Law it is stipulated that an employer may terminate an employment contract with an employee who violates work discipline trough misuse of right to leave due to temporary inability to work. Meanwhile the same article in para. 4 prescribes the employer’s right at their own cost to refer the employee for an analysis into the authorized health institution, in order to determine the circumstances regarding the absence from work due to temporary incapacity.
In addition, by the means of Art. 156 and 157 of the Law on Health Condition it is prescribed the possibilities of the employer to request that the employee whose temporary incapacity for work has been assessed be subjected to re-assessment, ie to request an expert opinion regarding the exercise of all rights of insured persons, including expertise on the health condition of the insured person as well.
However, proving temporary incapacity for work in practice, i.e. the actuality of the misuse as a legal basis for termination of the labor contract or imposing some of the measures for violation of working discipline is rarely chosen path by the employers, even if there are obvious indistinctness and discrepancy regarding the reasons for employee absence from work.
As an employer it is not uncommon to deal with the medical professional who are pleading to disorderly the Law on the Protection of Patients’ Rights and the Law on the Protection of Personal Data, thus discourages the employer in any further attempt to prove the misuse of sick leave from work.
It is of the great importance not to neglect the court practice in which certain decisions it is determinated the absence of misuse of sick leave if, e.g. the employee’s outings or meetings during temporary incapacity for work did not cause additionally impairment of health condition. According to that, it become apparent that the misuse of sick leave exists in the situation when the healthy employee uses it, but also when during incapacity for work behaves in the opposite to the purpose of determined and authorized absence from work.
The foregoing especially means that the existence or non-existence of sick leave misuse also depends, due to the nature of the disease itself and the reasons for the inability to work, which requires or does not require limited movement, rest, etc. which is certainly the subject of the assessment of each particular case.
However, our attention in this regard and in this text is focused on the application of the relatively new Law on Detective Activity (“Official Gazette of RS”, No. 104/2013, 87/2018) as well, which also contains the provisions that in principle may be applicable to the case of determining sick leave misuse.
Namely, in its introductory provisions, the mentioned Law defines detective activity as an activity that includes investigative and detective services (collection, processing and transmission of data) and activities of private investigators, regardless when and for who they investigate.
Disclaimer: This text is written for informational purposes only as well as to give general information and understanding of the law, not to provide specific legal advice. For any additional information feel free to contact us.
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